Evidence Act, 1872 - S.114 - Penal Code, 1860 - Ss. 411, 457 & 380 - Theft - Lurking house trespass - Dishonestly receiving stolen property - Accused not guilty under Sections 457 and 380 I.P.C, but the 2nd accused was found guilty under Section 411 I.P.C. Though the prosecution could not effectively and successfully prove the alleged offence of lurking house trespass and theft, the evidence adduced by the prosecution clearly proved the offence under Section 411 I.P.C as against the 2nd accused. It was in such a circumstance, the trial court found him guilty under Section 411 I.P.C as a lesser offence.

When a person from whose possession, some stolen article are seized, could not account for the possession of it, the court can presume that he either committed theft of the articles or that he received the articles with the knowledge that it is stolen property. Seizure of the stolen articles from the possession of the accused stands proved by the evidence given by the attestors to the mahazar also. Seizure of the MO1 to MO4 properties from the possession of the revision petitioner is well proved by the evidence of PW7 and that PW1 has identified these as stolen properties. The offence under Section 411 I.P.C is well proved in this case.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P. UBAID, J.

Crl.R.P No.649 of 2002

Dated this the 23rd May, 2018

AGAINST THE JUDGMENT IN CRA 46/1995 of SESSIONS
COURT,MANJERI AGAINST THE JUDGMENT IN CC 186/1994 of J.M.F.C.,MALAPPURAM REVISION

PETITIONER(S)/APPELLANT/ACCUSED

ABDUL MAJEED

BY ADV.SRI.NOUSHAD THOTTATHIL

RESPONDENT(S)

STATE
OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.

BY PUBLIC PROSECUTOR SMT.SREEJA.V.

O R D E R

The revision petitioner herein is
the 2nd accused in C.C No.186/1994 of the Judicial First Class
Magistrate Court, Malappuram. He and the 1st
accused faced prosecution in the
court below under Sections 457 and 380 I.P.C on the allegation that in between
29.12.1993 and 4.1.1994, they committed lurking house trespass to the house of
one Sunderdas within the Malappuram Municipality and committed theft of some
articles like television, stabilizer T.V booster, remote control, tape recorder
etc., worth 27,000/-. The stolen articles ₹ were seized by the Circle Inspector
of Police, Manjeri as per a mahazar from the possession of the 2nd accused in suspicious circumstances. His
interrogation revealed the commission of offence by him and the other accused,
and accordingly after investigation, the Police submitted final report in court.

2. The two accused appeared before
the learned Magistrate and pleaded not guilty to the charge framed against them
under Sections 457 and 380 I.P.C. The prosecution examined seven witnesses and
proved Exts.P1 to P5 documents in the trial court. The MO1 to MO4 properties
were also identified during trial. Both the accused denied the incriminating
circumstances when examined under Section 313 Cr.P.C. They did not adduce any
evidence in defence.

3. On an appreciation of the
evidence, the trial court found both the accused not guilty under Sections 457 and
380 I.P.C, but the 2nd
accused was found guilty under Section
411 I.P.C. Though the prosecution could not effectively and successfully prove
the alleged offence of lurking house trespass and theft, the evidence adduced
by the prosecution clearly proved the offence under Section 411 I.P.C as
against the 2nd accused. It was in such a circumstance,
the trial court found him guilty under Section 411 I.P.C as a lesser offence.
On conviction, he was sentenced to undergo rigorous imprisonment for one year. Aggrieved
by the judgment of conviction dated 28.2.1995, the 2nd accused approached the Court of Session, Manjeri with
Crl.A No.46/1995. In appeal, the learned Sessions Judge confirmed the
conviction, but modified and reduced the sentence to simple imprisonment for
six months. Now the 2nd
accused is before this Court in
revision challenging the legality and propriety of the conviction and sentence.

4. On a perusal of the materials
including the evidence given by the Circle Inspector who detected the offence,
I find no reason for interference in revision in the findings or the conviction
made by the courts below concurrently against the revision petitioner under
Section 411 I.P.C. PW1 is the owner of the stolen properties and PW7 is the
Circle Inspector who detected the offence. PW1 has given evidence regarding the
incident of theft that occurred at his house in the night in between 29.12.1993
and 4.1.1994. During trial, PW1 very well identified the MO1 to MO4 properties
as the articles stolen from his house. The
fact of theft is also proved by his evidence. The scene mahazar shows the damage
caused to the door made by the thief for gaining entry into the house. The
evidence of PW1 is that the alleged theft happened in the night. Thus, the
incident of theft stands well proved, but the prosecution could not successfully
prove who committed theft of the articles.

5. The evidence given by PW7 shows
that all the stolen articles identified by PW1 during trial were seized by him
from the possession of the revision petitioner. He is an autorickshaw driver.
The Circle Inspector saw the articles inside the autorickshaw in suspicious
circumstances. When interrogated by the police, the 2nd accused could not satisfactorily account for the
possession of the articles. In such a circumstance, those article were seized
as per a mahazar, and the 2nd
accused was arrested by the
Circle Inspector. Section 114 of the Indian Evidence Act contains a presumption
that, when a person from whose possession, some stolen article are seized,
could not account for the possession of it, the court can presume that he
either committed theft of the articles or that he received the articles with
the knowledge that it is stolen property. Seizure
of the stolen articles from the possession of the accused stands proved by the
evidence given by the attestors to the mahazar also. Thus, I find that seizure
of the MO1 to MO4 properties from the possession of the revision petitioner is
well proved by the evidence of PW7 and that PW1 has identified these as stolen
properties. I
find that the offence under Section 411 I.P.C is well proved in this case.

6. Now the question of sentence.
Though the trial court imposed a jail sentence of rigorous imprisonment for one
year, the appellate court modified and reduced it to simple imprisonment for
six months. The incident happened long back in between December 1993 and January,
1994. Twenty four years have elapsed. There is nothing to show that he is
involved in any other similar offence. Being a first offender, I feel it
appropriate to reduce the sentence further to the minimum possible under the
law in view of Section 354 (4) Cr.P..C.

In
the result, the conviction against the revision petitioner under Section 411
I.P.C is confirmed and the revision petition is disposed of accordingly. However,
the jail sentence imposed by the trial court and modified by the appellate
court in Crl.A 46/1995 will stand further reduced to simple imprisonment for
three months. The revision petitioner will surrender before the trial court within
one month from this date to serve out the modified sentence voluntarily, on
failure of which, steps shall be taken by the trial court to enforce the
modified sentence.